| IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd. |
| 2009 NY Slip Op 09395 [68 AD3d 576] |
| December 17, 2009 |
| Appellate Division, First Department |
| IRB-Brasil Resseguros S.A.,Respondent-Appellant, v Eldorado Trading Corporation Ltd. et al.,Appellants-Respondents. |
—[*1] Skadden, Arps, Slate, Meagher & Flom LLP, New York (Lea Haber Kuck of counsel), forrespondent-appellant.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June9, 2009, awarding plaintiff the principal sum of $31,519,242.33, and bringing up for review anorder, same court (Herman Cahn, J.), dated February 11, 2009, which, upon renewal, grantedplaintiff's motion for summary judgment, unanimously affirmed, with costs. Appeal from order,same court (Herman Cahn, J.), entered October 1, 2008, which initially denied the summaryjudgment motion, unanimously dismissed, without costs, as academic.
Plaintiff's original motion for summary judgment was denied because of the court's concernthat the Euroclear statement and other documents suggested that BB Securities, rather thanplaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew,submitting an affidavit by BB's managing director, clearly averring that it held the note solely ascustodian for plaintiff, as well as an assignment agreement between BB and plaintiff,establishing the latter's exclusive entitlement to sue under the note. Under these circumstances,the court providently exercised its discretion in granting renewal in the interest of justice (seeGarner v Latimer, 306 AD2d 209 [2003]). The additional affidavit by an officer familiarwith the corporate records, accompanying a true copy of the assignment agreement, wasadmissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), andestablished plaintiff's entitlement to summary judgment.
In view of our finding that summary judgment was correctly granted upon renewal, wedismiss plaintiff's appeal of the denial of its original motion for summary judgment as academic.However, had we not done so, we would hold that plaintiff met its prima facie burden on theinitial motion for summary judgment by submitting evidence of defendant Eldorado Trading'spromise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, andnonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lvdenied 86 NY2d 711 [1995]). Plaintiff also submitted evidence demonstrating it hadpurchased the note, which was held by BB Securities on its behalf in a secure account atEuroclear. Contrary to defendants' contention, the affidavit of a corporate officer with personalknowledge, together with [*2]authenticated business records, isadmissible in support of a motion for summary judgment (see First Interstate Credit Alliancev Sokol, 179 AD2d 583, 584 [1992]). In addition, a certified statement of account issued byEuroclear was admissible under the terms of the note, which provided that such record would be"conclusive evidence" as to the identity of any holder, and because it had sufficient indicia oftrustworthiness (see Elkaim v Elkaim, 176 AD2d 116, 117 [1991], appeal and lvdismissed 78 NY2d 1072 [1991]). Concur—Tom, J.P., Andrias, Saxe, McGuire andManzanet-Daniels, JJ.